Whether the presumption of possession with autonomy is reversed merely because the state or local government fails to submit documents on the procedure for acquiring land for the completion of prescriptive acquisition (negative)

Articles 197(1) and 245(1) of the Civil Act

Supreme Court Decision 2010Da33866 Decided August 19, 2010 (Gong2010Ha, 1790) Supreme Court Decision 2010Da94731, 94748 Decided March 27, 2014 (Gong2014Sang, 915)

Plaintiff

Head of Sung-gun (Attorney Kim Yong-hwan, Counsel for defendant-appellant)

Gwangju District Court Decision 2015Na52141 Decided September 23, 2015

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

1. If the nature of the source of possessory right of real estate is not clear, the possessor shall be presumed to have occupied the property in good faith, peace, and openly with his/her own will. Such presumption is equally applied to cases where the State or a local government (hereinafter collectively referred to as “the State, etc.”) that is the managing body of the cadastral record, etc. takes possession. Even in cases where the possessor asserts the title of possession, such as the purchase and sale or donation, but such assertion is not acknowledged, the presumption of possession is reversed or it cannot be deemed to have been occupied by the nature of the source of possessory right (see Supreme Court Decisions 9Da72743, Feb. 26, 2002; 2006Da28065, Feb. 8, 2007; 2006Da28065, Feb. 16, 2007). Therefore, even if the State, etc. did not lawfully submit documents regarding the procedure for acquiring ownership of land, the State, etc.’s possession of land, and the State’s ownership can be deemed as one owner.

2. According to the reasoning of the judgment below, with respect to the Defendant’s assertion that the prescription period for the acquisition of possession was completed by occupying the land area of this case on July 20, 1972, the Defendant recognized the fact that the land category of the instant land was changed to the road on July 20, 1972, but it is reasonable to deem that the Defendant commenced possession of the instant land without any legal requirements, such as a juristic act that may cause the acquisition of ownership of the instant land, even though it was recognized that the Defendant did not have any such legal requirements, even though it was aware that there was no such legal requirements, the Defendant’s presumption of the possession of the instant land was broken.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following facts.

(1) On June 20, 1915, the instant land was divided from the above land on June 20, 1972, and the land category of the instant land was changed to “road”. From around that time, the Defendant occupied the instant land as a road.

(2) With respect to the instant land that was unregistered at the time of October 24, 1978, the registration of ownership transfer was completed in the name of Nonparty 3 due to the subrogation of the right to claim the registration of ownership transfer following the donation made on June 20, 1978, and the registration of ownership transfer was completed in the future of the Defendant.

(3) The non-party 3 died on May 24, 1943. The non-party 4, who was the south of the Republic of Korea, was already deceased on July 28, 1935, and thus, the non-party 5, who was the south of the head of the non-party 4, succeeded to the head of the family and the property by drinking practice, and the non-party 5 died on September 15, 1958, and succeeded to the head of the family and the property of the non-party 6, who was the south of the head of the family. The non-party 6 died on November 22, 2007. The plaintiff, as the non-party 6's children, succeeded to the property of the non-party 6, together with two mother and the

(4) Meanwhile, registration of ownership transfer was completed in the name of Nonparty 3 on October 24, 1978, with respect to the remaining (road address 2 omitted) of 2,942 square meters in the land before subdivision (hereinafter “divided land”). On July 18, 1981, the grounds for registration was as “sale on February 12, 1973” and the ownership transfer registration was completed in accordance with the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 3094) on November 17, 196, by deeming the grounds for registration as “sale on February 12, 1973.” The Plaintiff was 14 years old at the time of the registration of ownership transfer.

(5) Although Nonparty 6, who was the owner of the instant land, appears to have exercised the right by allowing the Plaintiff to complete the registration of transfer of ownership in the future with respect to the land after the division that was one’s own, Nonparty 6 did not raise any objection against the Defendant’s possession or the registration of transfer of ownership regarding the instant land.

B. Examining these circumstances in light of the legal principles as seen earlier, even if the Defendant failed to submit the documents regarding the acquisition procedure of the instant land, the possibility that the Defendant would have gone through lawful procedures to acquire the ownership of the instant land at the time cannot be ruled out in light of the developments leading up to the Defendant’s possession of the instant land, the purpose of possession, and the relationship between the disposal, use, and exercise of rights of the instant land and other land divided with the instant land. Therefore, it is difficult to recognize the Defendant’s possession of the instant land as an occupation without permission.

C. Nevertheless, the lower court determined otherwise solely on the grounds indicated in its reasoning. In so determining, it erred by misapprehending the legal doctrine on the presumption of autonomous possession, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)